Court
Could Reverse Ban on Homosexual Sex

Associated Press, March 26,
2003

By Anne Gearan

WASHINGTON—A gay-rights case
before the Supreme court tests how times have changed for the country and for
the court itself, which was widely criticized for a ruling 17 years ago that
upheld a ban on homosexual sex. The court could reverse course and declare a
similar ban unconstitutional.

Lawyers for two Texas men arrested in their bedroom are
asking the court Wednesday to overturn their convictions for sodomy under a
state “Homosexual Conduct” law. The law unfairly treats gay men and
lesbians differently from heterosexuals who may engage in the same kinds of
sex acts and violates privacy rights, the opponents argued in court filings.

State anti-sodomy laws, once universal, now are rare.
Those on the books are infrequently enforced but underpin other kinds of
discrimination, lawyers and gay rights supporters said.

“We truly hope the Supreme Court in its wisdom will
remove this mechanism that has been used for so long to obstruct basic
civility to gay and lesbian people,” said Elizabeth Birch, executive
director of the gay rights organization Human Rights Campaign.

In 1986, a narrow majority of the court upheld
Georgia’s sodomy law in a ruling that became a touchstone for the growing
gay rights movement. Even then the court’s decision seemed outdated and was
publicly unpopular, said Harvard law professor Laurence Tribe, who argued on
the losing side of the case.

“We’re now dealing with a very small handful of
statutes in a circumstance where the country, whatever its attitudes toward
discrimination based on sexual orientation, (has reached) a broad consensus
that what happens in the privacy of the bedroom between consenting adults is
simply none of the state’s business.”

As recently as 1960, every state had a sodomy law. In 37
states, the statutes have been repealed by lawmakers or blocked by state
courts.

Of the 13 states with sodomy laws, four—Texas, Kansas,
Oklahoma and Missouri—prohibit “deviate sexual intercourse,” or oral and
anal sex, between same-sex couples. The other nine ban consensual sodomy for
everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina,
South Carolina, Utah and Virginia.

An unusual array of organizations is backing the two
Texas men. In addition to a long list of gay rights, human rights and medical
groups, a group of conservative Republicans and the libertarian Cato Institute
and Institute for Justice argued in friend of the court filings that
government should stay out of the bedroom.

“This case is an opportunity to confirm that the
constitutional command of equal protection requires that gays be treated as
equal to all other citizens under the law, subject to neither special
preferences nor special disabilities,” the brief for the Republican Unity
Coalition said.

On the other side, the Texas government and its allies
say the case is about the right of states to enforce the moral standards of
their communities.

“The states of the union have historically prohibited a
wide variety of extramarital sexual conduct,” Texas authorities argued in
legal papers. Nothing in that legal tradition recognizes “a constitutionally
protected liberty interest in engaging in any form of sexual conduct with
whomever one chooses,” the state argued.

Conservative legal and social organizations, religious
groups and the states of Alabama, South Carolina and Utah back Texas in the
case.

The case began in 1998, when a neighbor tricked police
with a false report of a black man “going crazy” in John Geddes
Lawrence’s apartment. Police smashed their way in and found Lawrence having
anal sex with another man, Tyron Garner.

Although Texas rarely enforced its antisodomy law,
officers decided to book the two men and jail them overnight on charges of
“deviate sexual intercourse with another individual of the same sex.” They
were each fined $200 plus court costs.